Donald Trump’s Lawyer Is Dumber Than Donald Trump

Donald Trump has had quite a run of lawyers. There’s Alina Habba, the camera-hungry counsel who decided to hold a news conference before Trump’s arraignment yesterday and ranted about Hunter Biden before admitting, one presumes accidentally: “I think that everybody was made aware that he lost the election, but that doesn’t mean that was the only advice he was given.”

They’ve been a clown show almost top to bottom, but it looks like John Lauro, who’s taken the public lead this week, is topping them all. He started the week peddling the free speech argument against the indictment, which has been pulverized by many people, such that I don’t even need to go into it. But just to toss in my own quick two cents: If I say to John that Jeff is a terrible person and should die, that’s free speech; if I say to John that Jeff is terrible person and we should conspire to murder him, that’s criminal intent. Pretty simple.

But Lauro really outdid himself Thursday night on Laura Ingraham’s show. Early in his segment, he said to Ingraham that before January 6, Trump had voiced his support for Mike Pence to refuse to certify the Electoral College votes and send the presidential election back to the states. Then, a little later, Lauro said: “What President Trump said is, ‘Let’s go with option D. Let’s just halt, let’s just pause the voting and allow the state legislatures to take one last look and make a determination as to whether or not the elections were handled fairly.’ That’s constitutional law. That’s not an issue of criminal activity.”

Um … whut? That is exactly an admission of criminal activity! It’s an admission that Trump was urging Pence to violate the Electoral Count Act, which requires him to preside ceremonially over the counting and approve it. In fact, Lauro was describing a conversation that is recorded in the indictment! Go look. It’s in paragraph 93: “The Defendant and Co-Conspirator 2 then asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states’ legislatures.”

Over on MSNBC, they were quick to pounce. “That is a Trump criminal defense lawyer quoting Donald Trump committing a crime,” said Lawrence O’Donnell.

This is a pattern with these people. Go back to late 2020, after the election, and think of all the arguments Rudy Giuliani was making on Fox and Newsmax. They were, if true, monstrous and outlandish charges about voter theft. But a funny thing happened whenever he found himself in an actual courtroom: He didn’t say those things, because he knew they’d never fly and he had no actual evidence. But that didn’t prevent him from saying those things on national television, over and over, with so much conviction that his hair dye ran down his face.

The above are lies, but they’re just stupid lies. They’re dangerous and destructive, but we don’t really have to take them that seriously since they get laughed out of court and show these people to be such incompetent bumblers. There’s another set of lies, however, that we need to take more seriously, because these lies constitute direct attacks on our system of government. These lies are fascist.

I’m thinking here, to name one of many possible examples, of Lindsey Graham, who told Sean Hannity, “Well, Sean, any conviction in D.C. against Donald Trump is not legitimate.”

Think about that. That’s a U.S. senator saying that the American system of justice is illegitimate—that the jury system isn’t to be trusted. He’s not alone, of course. They’re all piling on about a D.C. jury (and yes, there aren’t many MAGA-heads living in the nation’s capital, but I think we all know what else that means, between the lines).

Do you know how far back the principle of trial by jury goes? They had jury trials in Ancient Greece. In the Roman Republic. It was enshrined in the Magna Carta (that’s 1215). And the principle was absolutely crucial to the Founders. John Adams: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

They were fine with the jury system, of course, when we were all talking about Aileen Cannon’s courtroom down in Fort Pierce, Florida, in a county that Trump carried. Then, they didn’t complain. And you know what? I didn’t either, and I didn’t hear a single Democrat talk crazy smack on the jury system. I wasn’t wild about it, or about the fact that the classified documents case got assigned to Cannon in the first place, but them’s the breaks.

They will say anything, do anything, attack anything, allege anything, lie about anything, repeat anything, proclaim anything, insinuate anything, and imply anything. Except of course anything that’s true. They are turning the country and its principles upside down. They are fomenting a furious army of acolytes who own a lot of guns. When Trump is convicted here, as it appears he will be, given that his lawyer just admitted to it, what will they do?

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Fascism is not a political program. It’s different from every other -ism in this way. Capitalism means something specific: private ownership of the means of production. Communism means the opposite: state (or worker) ownership of the means of production. Socialism is, or used to be, a softer form of communism. It’s hard to say what it means now, and by the way, Bernie Sanders and Alexandria Ocasio-Cortez are not democratic socialists. They’re social democrats—Google the difference, and you’ll see what I mean.

Anyway. Fascism is a sensibility far more than it is a political program. The word comes to us from ancient Rome, where the fasces was a bound bundle of wooden rods with an ax (or sometimes two) that symbolized political power. It wasn’t always bad; next time you visit the Lincoln Memorial, look below Abe’s hands—those are fasces. They were literal back in Rome, and Cincinnatus, who served as dictator for just 16 days, is famous for having spurned them. He remains one of the few leaders in history who refused absolute power and returned to private life, the other prominent one being our own George Washington, who easily could have made himself dictator in the mid-1780s but refused to do so. The day in 1783 when he stopped off in Annapolis, where the Continental Congress was meeting, and resigned his military commission is the day the United States became a republic.

Fascism developed its modern meaning in Italy in the 1920s, under Benito Mussolini. He coined the term in 1919. He ascribed to it certain attributes—absolute state power over private enterprise, racial superiority of the majority group—but it really revolved around the power of the dictator, the dictator’s emotional connection to his followers, and their complete obeisance to him. It’s mystical and hard to describe. It can’t be defined in any constitution. It’s just something you can see and feel. I once saw a clip of Adolf Hitler giving a speech. After he was introduced and the applause quieted, he stood silent at the podium for almost a minute before he started speaking, quietly. That minute was fascism.

That is what Donald Trump wants. He already has it, in the sense that his rallies are fascist rallies. His backers surrender themselves to him in a way that small-d democratic admirers of Barack Obama and George W. Bush did not. This is why his poll numbers among Republicans go up and up. He has cemented the mystical bond. What he lacks, for now, is the power. We’re in a race now between republicanism, rule by citizens for the common good, and fascism, rule by a dictator for the good of his followers.

In a democratic society, the law is the most efficient means by which to arrest fascism. This is why Trump faces indictments. It’s the surest way to stop him. Smart fascists know this, and they either stay within the law or, perhaps paradoxically, violate it so flagrantly that they end up redefining what “the law” even is. Fortunately for us, Trump is a dumb fascist, and his ignorance may prove to be his Achilles’ heel. We also—again fortunately—have a system and set of laws and traditions that are stronger than those of, say, Weimar Germany, so Trump hasn’t yet been able to pollute them, although if he is reelected, he certainly will.

The new felony charges announced Thursday evening by the office of special counsel Jack Smith are simultaneously shocking and unsurprising. It stands to reason that Trump wanted the computer server that hosted Mar-a-Lago security video deleted. Yes, it’s especially ironic, given the way he carried on about Hillary Clinton’s server in 2016, but this too is a key attribute of fascism: Fascists do precisely the thing they accuse their opponents of doing. In August 1939, Goebbels accused the Poles of violence against Germans in the Danzig Corridor. It’s the only way fascism can work; to get the people to believe the opposite of the truth. Even Trump, dumb as he is, instinctively knows this.

Look at his recent statements. “This is prosecutorial misconduct used at a level never seen before. If I weren’t leading Biden by a lot in numerous polls, and wasn’t going to be the Republican nominee, it wouldn’t be happening. It wouldn’t be happening.… But I am way up as a Republican and way up in the general election, and this is what you get.”

He’s not ahead of Joe Biden. It’s a close race—disturbingly so—but, according to RealClearPolitics, Biden is narrowly ahead. And of course it’s not prosecutorial misconduct. Grand juries—American citizens—indicted Trump, not prosecutors. The only prosecutorial misconduct in Trump’s life was the laxity of the New York prosecutors who failed to nab him over the past 40 years. If they’d been doing their job, the nation might have been spared this turmoil.

With these next two indictments, assuming they happen, the mystical bond will grow deeper. Trump’s lies will intensify; his movement will become more openly fascistic. The law is the surest way to stop all this. But even convictions won’t end it. They’ll keep him out of the White House, most likely, but the Republican Party has probably been permanently transformed. The next Trump can’t wait to grab the fasces.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

House Speaker Kevin McCarthy came out Thursday and denied that he had promised Donald Trump votes on expunging his two impeachments by the House. Politico Playbook broke the story that Trump, angry that McCarthy had said, last month, that Trump might not be the GOP’s strongest presidential candidate for 2024, asked—er, “asked”—McCarthy to endorse him for president. Wanting to stay neutral, McCarthy reportedly put Trump off by promising to hold votes on wiping his impeachments from history’s obelisk.

The notion, of course, is chimerical. There’s no provision in the Constitution or in law for impeachments to be officially erased, so they would remain in the historical record. The votes would be purely for Trump’s ego. Anyway: “There’s no deal,” McCarthy told reporters Thursday, adding, however, that “I support expungement.”

Why the denial? Because the matter puts McCarthy in a horrible bind. We’ll get to that, but the more interesting point here for our purposes is how this shows what a shell the party of Lincoln has become. Everything that’s sick and warped and desiccated about today’s Republican Party is present in this deal (or “deal,” if McCarthy is to be believed).

What, precisely, is sick and warped and desiccated about today’s Republican Party? At least three things.

Number one: It’s a cult of one man—not a political party anymore in any remote sense of the word. Trump says jump, and they ask how high. In fact, these days, Trump rarely even has to say jump. A certain situation arises, and congressional Republicans anticipate that he’s about to say jump, so they start jumping, trying to guess the height that will please him most.

Elise Stefanik, the upstate New York congresswoman whose tongue must be purple from all the Kool-Aid she’s slurped down, is leading the chorus of jumpers here. And there are plenty of others. It so happens that this resolution is in trouble (more on which in a bit). But the fact that something this extreme is even being considered is proof of the congressional GOP’s servility.

Number two: The party is driven more than ever by its extremes, which is something that has never been the case for any political party in American history. You’ll recall, when Democrats had the majority, Nancy Pelosi was obsessed about what she called her “frontline” members—the vulnerable ones in purple districts. She was loath to make them cast a politically tough vote. This made her more progressive members grumpy at times. McCarthy is exactly the opposite. He has a few moderate-ish members (again, more on which in a bit), but just about everything he’s done so far has been to pander to the hard right.

Number three: There is no normal small-d democratic accountability in the GOP anymore. In theory, American political parties are accountable to the voters. But because of the way Republicans have gerrymandered congressional districts, most Republicans can’t lose—except to a primary challenger who’s even more MAGA than they are.

And that in a nutshell is why the party has become what it has become: an extremist cult that has no incentive to behave otherwise—and in fact has every incentive to keep behaving exactly this way or worse.

Now: What makes this episode delicious is that there is no good outcome for the GOP. Since the story broke, a number of House Republicans have said, on the record or on background, that they’re not so enthusiastic about this. Why? Because they think it might fail on a floor vote. Why? Because there are 18 Republican House members who represent districts Joe Biden won, and they’re terrified of having to vote on this. They’d all, or mostly, want to vote “no.” And they know very well what would happen: Trump would find a primary opponent to run against them, and those candidates would have instant access to big dollars and would be lionized by the right-wing media. So they might vote “yes” to prevent that from happening—in which case they would hand their Democratic opponents instant clubs with which to hammer them. McCarthy’s five-seat majority would be at serious risk.

You get the picture, I trust. There are three possible outcomes here, and all of them are bad for the GOP:

1. It comes to the floor and passes. A, they look ridiculous to swing voters. B, this will require the votes of at least some of the Bidenland 18, who’ll be instantly vulnerable.

2. It comes to the floor and fails. A total humiliation for McCarthy and Trump. Especially the latter.

3. McCarthy somehow doesn’t bring it to the floor at all. Trump is livid. The base is furious at “My Kevin.” Trump still looks weak, because everyone will know that the vote didn’t happen because Republicans feared it wouldn’t pass, endangering McCarthy’s speakership because he failed Dear Leader.

It’s great fun to watch. But it’s really tragic for the country. Step back and mull it over. A sitting president tried to subvert a foreign leader into getting involved in an American presidential campaign, threatening to withhold aid unless the leader did so. A clearly impeachable offense. Then he literally led an insurrection against the government he’s supposed to lead—an offense that was not only clearly impeachable but, as we appear to be about to learn from special counsel Jack Smith, may well have been criminal.

And the response of his party? To try to wipe these crimes from the books. I hope they succeed. It’s clear at this point that some percentage of the American electorate needs to be hit over the head to finally see the Republican Party for what it is. Expungement is the blunt instrument that might just do it.

If you’re old enough, you remember when the GOP fashioned itself the “law and order” party. This was because of its tough-on-crime stance, which, like most Republican policies (excessive tax cuts for rich people, relentless punishment of people on food stamps, contempt for science and environmental responsibility, etc.), has done immeasurable harm to the nation in our modern history, wrecking the lives of God-knows-how-many young people apprehended with a couple joints on their person. It was terrible, but at least it was true.

Here’s your “law and order” party at work today. House Republicans like to refer incessantly to the “Biden crime family.” They claim to be in possession of evidence of criminal wrongdoing, like secret Biden bank accounts that were set up to hide the numerous bribes they say Joe Biden has taken from foreigners. They claim all kinds of stuff. I guess we should not rule out the possibility, however remote, that this proof exists.

But we have the right to come to certain conclusions based on what they’ve shown us so far, half-a-year-plus into their majority. It’s been a complete and total clown show, culminating this week in a development that is so beyond absurd that if I were saying it instead of typing it, I’d be spitting out my coffee: The GOP’s whistleblower is literally a fugitive.

Gal Luft is the whistleblower around whom House Oversight Committee Chairman James Comer of Kentucky built considerable drama in recent weeks. Comer repeatedly told Fox News and Hill reporters that he had a guy who had the goods on Capo di Tutti Capi Biden but was being silenced by those crazy Marxists over at the FBI. Well, news broke this week that Luft was indicted for acting as an unregistered agent for China, trying to do various arms deals, including to Iran (in violation of U.S. sanctions), and more. And he is quite literally a fugitive from justice: Luft has lived outside the United States since November 2017.

You’ll notice that I didn’t say he was indicted this week, only that the news broke. This is an important point that you need to keep straight. Republicans like Comer and Jim Jordan have been whining about the timing of the indictment, accusing the Justice Department of attempting to silence their star witness at the crucial moment. But the indictment was actually filed last November. In other words, Luft has been under suspicion and investigation for some time, and the government came down on him before even the midterm elections. The indictment was logged when Justice didn’t even know who’d be running the House now.

Here’s just one charge from the indictment. Luft was working for a think tank. In the summer of 2015, it is alleged, a Chinese national who was the head of something called the China Energy Fund Committee, or CEFC, approached Luft and offered him and his think tank $350,000 a year to engage in some pro-China agitprop. Luft duly carried this out, hosting conferences, placing op-eds, and so on. Luft, the indictment alleges, was working with a former high-ranking U.S. official, who was called only “Individual 1” in the indictment but is known to be James Woolsey, who was for a couple years the head of the CIA under Bill Clinton.

Woolsey’s involvement here is interesting. He has referred to himself as a “Scoop Jackson Democrat” (that means hawkish), but evidently he decided at some point that Barack Obama was destroying America with his defense cuts. Woolsey threw in with Trump in the fall of 2016, at a time when dozens of national security eminences were warning what a danger he was.

Luft agreed to work on behalf of the CEFC to “educate” Woolsey, who would make public statements that were in the interests of China. Sure enough, on November 30, 2016, with Trump as president-elect, Woolsey spoke at an event called the Belt & Road Forum in Washington, co-hosted by the CEFC. “We want to joyfully participate with China in international trade operations and economic growth,” Woolsey said. “I think we have no reason why China and the U.S. cannot be close and friendly nations.” (Woolsey, it must be noted, later quit the Trump transition team, claiming he was being cut out of meetings.)

Maybe, as is always the case in such matters, none of the indictment is true. Like anyone, like even Donald Trump, Luft is entitled to the presumption of innocence.

But if the charges are true, put yourself in James Comer’s shoes. Would you really decide to try to build a case at least in part around a man who was accused of the things Luft is accused of? Is that a credible witness? Then there’s the simple practical matter that the guy hasn’t set foot in the U.S. in nearly six years. Was Luft going to Zoom his way to stardom from some undisclosed location in Cyprus? (That’s where he was when he skipped bail in April.)

This just scratches the surface, but take a breath with me here. What does Comer accuse Joe Biden of? Corruption pertaining chiefly to China—taking bribes mostly to get filthy rich, but in part to conceal the regime’s true face, thereby gussying up China’s image in the West. And what does the government allege his star-witness-in-waiting did? Took several payments of $350,000—to gussy up China’s image in the West. In other words, Comer wants us to believe that Biden behaved in a certain way with respect to China. But if the Justice Department is right, Luft behaved in exactly the way Comer accuses Biden of acting!

Luft released a video earlier this month saying, among other things, that he’s on the lam because “I did not believe I will receive a fair trial in a New York court.” Perhaps one day we’ll find out. But right now, we know this much. James Comer doesn’t look like he could run a one-car funeral, let alone the proverbial two-car version. The right-wing media has fashioned a ready excuse for such situations: It’s all the deep state covering up for the Bidens and persecuting truth tellers. Back here on planet Earth, though, the bottom line remains that Comer’s star witness is a fugitive from justice. If Joe Biden actually is corrupt, he couldn’t ask for a better, more Clouseau-like pursuer than James Comer.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

This is the kind of topic about which liberals generally don’t want good news. They want to worry. They assign to their right-wing foes a strength and formidability that they never see on their own side (I’m often as guilty of this as anybody, I confess). They lack faith in the common sense and decency of the average voter. They want, on some level, to think, or at least to fear, that disaster is around the corner.

I rise today to fight that tendency. Yes, it’s early. Yeah, it’s premature. But I’m going to say: The signs I see so far? They suggest to me that Donald Trump (a) is going to win the GOP nomination and (b) stands a very good chance of leading his party to an epic wipeout next November.

To understand this, you have to open your eyes to things that can be hard to see as they unfold in real time. But they’re there, and they tell us this: Trump is much more extreme, much more unhinged, much more exposed than he was in 2016. Pay attention to what you see.

The most recent example, perhaps small, but I think nevertheless telling, consists of his recent “truths” on Truth Social. He posted Barack Obama’s current address. Think about that. That’s an invitation to someone to go try to shoot him. And sure enough, someone did. Shortly after Trump’s post, Tyler Taranto showed up with a machete, two guns, and 400 rounds of ammunition. He appears to have reposted Trump’s post. He was arrested, and Obama’s block in D.C. is of course heavily protected, but none of that changes the fact that a former president of the United States pretty obviously was egging his supporters to commit violence against another former president.

Friday morning came the related news that federal prosecutors working on the classified documents case against Trump are facing threats from MAGA-heads. They’re posting the names of federal prosecutors online. These people’s blocks are not under heavy Secret Service protection. What if one of them gets murdered? And what are the odds, given the way Trump has riled these people up, that if he’s convicted before Election Day, there won’t be violence, at least of the generalized sort and at worst of the targeted-execution variety?

That’s the first thing. Here’s a second.

More from Trump’s Truth Social feed: “Does anybody really believe that the COCAINE found in the West Wing of the White House, very close to the Oval Office, is for the use of anyone other than Hunter & Joe Biden.” Hunter Biden wrote in his memoir that he’s been clean since 2019; but let’s face it, when one hears “cocaine in the White House,” he does leap to mind. But then, Trump throws Joe Biden in there. Who thinks Joe Biden does blow? It’s unhinged, and it’s a sign that Trump’s hold on reality, always tenuous, is vaporizing and that he’s even more emboldened now to say even more outrageous things than he said in 2016, which after all is the logic of outrage: It has to get more extreme in order to continue to have shock value. What even more unhinged thing might he be capable of saying on a debate stage next fall?

Combine these recent developments with the things we already know, we’ve already seen. I wrote in our June cover story that Trump’s toxic rhetoric far exceeded where he was going in 2016. If you can’t see the difference between “Drain the swamp” (2016, and something any right-populist could say) and “I am your revenge” (the words of a megalomaniacal authoritarian demagogue), then you need some history lessons. I think here also of the Trump we saw in that infamous CNN town hall. He was totally out of control. I kept watching that and thinking: Is there any chance, I mean any chance, that the centrist soccer mom from the Milwaukee suburbs who took a flier on him in 2016 against Hillary Clinton is going to want to see this deranged, blubbering, vain peacock back in the White House?

I know, I know. Biden’s age. The “wrong direction” poll numbers are bad. A recession could hit, although experts have backed off that concern somewhat. Still, I take all that seriously, believe me.

But I’ll tell you this. If I were a Republican, I’d be scared shitless about what Trump might do to my party next year. The presidential election won’t be a runaway, because that isn’t how it works anymore. But I’d be very worried that Trump loses all the states he lost in 2020—and by a little more than he lost them the last time—plus maybe North Carolina, which would bump Biden’s Electoral College margin up to 319–219, which in a headline sounds like a rout. And the somewhat higher margins in Arizona, Georgia, et al. would foreclose any serious attempt to cry foul. Swing voters just wouldn’t buy it.

Democrats are feeling pretty confident about retaking the House. The Senate looks a lot tougher. But if Senate candidates in purple and even a couple reddish-to-red states are wedded to a standard-bearer who looks, to your average person, not just unpreferable but outright dangerous, who knows? The normal swing-voter reflex is to think, “OK, I’ll vote Biden, but I’ll balance it out by voting for a Republican for Senate” (there aren’t as many swing voters as there once were, but they exist). I’m positing that Trump could be so bad that those voters decide en masse that now is the time to punish the Republican Party and demand that they wipe the slate clean, ditch Trump, and grow up. (And, of course, throw in the anti-Dobbs backlash, which should give Democratic Senate candidates two to four points nearly everywhere.)

I’m not urging overconfidence. Politicians should always run like they’re 10 points behind. I’m just saying: Pay attention to what you see. And what we’re seeing so far is Donald Trump being far more extreme than he was in 2016 and alienating a huge chunk of the voters who bought his snake oil back then.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

The Supreme Court threw normal America a few bones this term, since John Roberts knew the court’s, and his, reputation was down there in Elizabeth Holmes territory. Roberts and Brett Kavanaugh decided not to kill voting rights, and those two and Amy Coney Barrett rejected the independent state legislature theory. Then, as the term drew to a close, the court reverted to the mean by ending affirmative action in colleges and allowing business owners to discriminate against LGBTQ people.

Did they fool anybody? Maybe, to some extent. But the right-wing assault on freedom continues. We already know from California and a couple other states where affirmative action has been reversed that Black enrollment at prestige universities has gone down; a tool that Lyndon Johnson put in place nearly 60 years ago is now blunted.

In future terms, this conservative majority is going to do damage on all kinds of fronts. Already on the docket for the 2023–2024 term are cases that will revisit the question of racial gerrymandering; will consider an important point of criminal due process; will determine whether the funding mechanism for the Consumer Financial Protection Bureau, or CFPB, is constitutional; and most important of all, will seek to strike down “Chevron deference,” which grants executive agencies broad authority to interpret and implement laws passed by Congress. (Striking down the deference, which the conservative majority is widely expected to do, will vastly constrict the federal government’s ability to enforce aggressive regulatory laws.)

So imagine sitting here one year from today. It’s entirely possible, I’d say likely, that the court’s conservatives at the very least will have thrown the existence of the CFPB into doubt and opened the door to endless lawsuits from people and organizations looking to cut the federal government down to size. On the Chevron challenge, captioned Loper Bright Enterprises v. Raimondo, the right will benefit from the fact that Ketanji Brown Jackson has recused herself, as she did in this week’s Harvard affirmative action case, because she participated in earlier oral arguments in the case (some justices do have scruples).

And then, someday—and we can be sure that right-wing activists are already filing the lawsuits they hope will work their way up to the Supremes—we may be saying goodbye, same-sex marriage. Adieu, right to contraception. Auf Wiedersehen, one person, one vote. This last one, which gets a lot less press than the others, will functionally destroy democracy by allowing state legislatures to draw—legally—districts that give rural people far more representation in legislatures than urban people.

The usual liberal narrative here is that this six-member majority is a mighty frigate being skippered by the unstoppable Leonard Leo, former head of the Federal Society, and we are doomed to a generation of right-wing decisions that will take us back to the nineteenth century. That might well be right. But it is not inevitable. There is a crucial distinction between recognizing a likely reality and submitting to it. The former is fine and necessary and says we still have to fight because we never know what the future holds. The latter constitutes giving up.

Joe Biden and his administration are in the former camp. Biden has named more federal judges to the bench in his first 28 months than the previous three presidents—a total of 136 “Article III” judges (federal judges nominated by the president and confirmed by the Senate). And more meaningful than the number is the type, as two-thirds of those nominees are women and two-thirds are people of color. Many are from plainly progressive backgrounds in the law.

In just the last month or so, these judges are among those confirmed:

• Nusrat Choudhury, the first Muslim American woman (and first Bangladeshi woman) to be named to the federal bench; a civil rights lawyer with the ACLU

• Natasha Merle, an African American woman out of the NAACP Legal Defense and Education Fund

• Dale Ho, an Asian American voting rights attorney

• Casey Pitts, an openly LGBTQ labor lawyer

• Hernán Vera, a Latino former staff attorney at the Mexican American Legal Defense and Education Fund

Someday, the high court will have two or three people like this, and the decisions will start breaking our way again. In the meantime, momentum is building for changing the court—at least, say, ending lifetime appointments. Ending lifetime tenure polls well and is hardly the radical measure the right makes it out to be. And most of all, liberals are casting their presidential and congressional votes with the Supreme Court in mind. It took long enough, but after Dobbs, we’re here.

Finally, it’s worth remembering that a Supreme Court decision is not the end of a fight. In many ways, it’s the beginning. Since Dobbs, the states that have moved to restrict abortion rights have dominated the headlines, and quite rightly. But abortion rights are protected in some way, shape, or form in roughly half the states. Pro-choice organizations are active on a range of fronts, working to ensure that women from red states seeking abortions can get to “safe harbor” states. And support for abortion rights has shot up in the polls.

The modern right has achieved its successes knowing that it represents a minority of the country. This is why its leaders lie all the time about their true intent. Before Dobbs, they said overturning Roe and returning the question to the states was their goal. Now we see that that wasn’t true. They want a federal ban. The presidential contenders dance around the question, but it’s pretty obvious where the movement and the base stand—and point me to one high-profile instance where GOP elected officials have defied the wishes of their base.

Pro-choice Americans are the majority. So are Americans who want reasonable voting rights protections for minorities, a fair chance for labor unions to be active, a federal government that can implement laws Congress passes, and more. The iron-willed minority has won a lot of battles, and it will win more, and the consequences will sometimes be devastating. But Dobbs was a turning point. The people have woken up. Progressives are filling the federal bench. This isn’t a story of victory yet. But neither is it one of total despair.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Saturday brings the infamous first anniversary of the Supreme Court’s Dobbs decision. Let’s begin by bearing in mind something that a lot of anti-abortion activists used to say before Roe was struck down: that the mere striking down of Roe was their goal, and all they wanted was to see the matter returned to the states.

This was a lie. As we have seen, the striking down of Roe was just the beginning—a first step in a process that they clearly hope will culminate someday, perhaps soon, in a federal abortion ban. After Dobbs, some Republican could have said: Hey, let’s take a breath here. We got our big win, but we are taking away a 50-year-old right from people, and maybe we ought to see how that shakes out.

Of course, they did no such thing. Many states rushed to pass the most extreme measures they could squeeze through their legislatures. Today, abortions are entirely or mostly banned in 14 states. Nine of those bans, according to The New York Times, include no exceptions for rape or incest. Most of these states are in the old Confederacy, but this list also includes Wisconsin, where Roe’s demise kicked in a draconian 1849 law that is still being adjudicated. 

On the plus side, 25 states and the District of Columbia have passed new protections. This includes most of the states you’d expect, along with Iowa, Kansas, and Alaska. So all is not lost—and as we’ve seen, what the Supreme Court really accomplished with Dobbs, aside from wrecking its own reputation, is to have solidified public opinion in support of protections for abortion rights. Poll after poll shows all-time-high levels of support for abortion rights.

That’s encouraging, but let’s not lose sight of what’s happening. The Times also reports that since Dobbs, 61 clinics and doctors’ offices have stopped offering abortions. Nineteen of those are in Texas (which is not only a no-exception state but also the lone state where private citizens can sue abortion providers and those who assist patients seeking abortions). That’s thousands of women, maybe millions, being denied a right to bodily autonomy that they had for half a century. Taken away overnight.

On top of that, we’re at the very beginning of a new presidential campaign, and Republican candidates are out there on the trail vowing to go even further. This weekend, there’s the Faith & Freedom Coalition’s Road to Majority Conference in Washington, in addition to a Students for Life rally on the national mall. Mike Pence, who is staking out the most extreme position on the issue, is the only candidate speaking to both, reports Politico’s Playbook. We can be sure that stern anti-abortion pledges will be front and center.

And as for the court? The great Linda Greenhouse has an interesting column in the Times today. She tells the story of how, in the 1940s, the Supreme Court switched from having upheld a Pennsylvania school district’s expulsion of Jehovah’s Witness schoolchildren because they would not salute the U.S. flag to reversing itself—while the United States was at war, no less. The composition of the court changed somewhat, but three justices who’d originally ruled against the schoolchildren changed their position on a similar case.

Why did they switch? Because they saw the hatred their original decision had unleashed. Greenhouse: “Mobs attacked individual Witnesses and destroyed their places of worship. More than 2,000 Witness children were thrown out of school, and some of their parents criminally prosecuted.” Most of America agreed that the court had righted a grievous wrong.

But that was before the era of Fox News and the Federal Society and Leonard Leo and right-wing justices flying on private planes and seeing nothing wrong with it. “So no, I don’t think the Dobbs justices are sorry,” Greenhouse writes. “They did what they were put there to do, what they wanted to do, and they were quite explicit in washing their hands of the consequences.”

But consequences are coming for the conservative movement of which those six justices are a part. They were felt already in the midterm elections, and they’re coming in a bigger way still next November. The price that’s being paid by regular Americans is tragic, and the structure of the court is such that it could take 20 years before we have a majority that reverses Dobbs. The six justices, and Donald Trump, and Republicans in Congress will come to pay a mighty price for what they’ve done to America.

The New Republic is trying to raise $10,000 to broaden our coverage of these fights for abortion rights across the country. Please see the box at the top of this article and click on Yes, I’ll Help!

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

One of the right wing’s “skills,” such as they are, is taking one little piece of fresh information that appears and using it to breathe new life into an old and discredited allegation. Those of you with elephantine memories may recall, for example, how the late discovery of private attorney Hillary Clinton’s billing records in a storage box reignited certain questions about Whitewater, producing an orgiastic frenzy of “Aha!” journalism on the right. That these records did more to exonerate Clinton than incriminate her was something the right didn’t usually mention.

This is what is going on now with the Biden “bribery” scandal. The allegation—that Joe Biden took a $5 million bribe from Burisma, a Ukrainian energy company—is quite old. It was revived last month by Senator Charles Grassley’s office, which said a whistleblower came forward with credible information of something or other. Then the indictment of Donald Trump sent Fox and Newsmax into heart attack mode, because, you see, the Deep State indicted Trump only to divert people from the mosh pit of corruption into which Biden was quickly sinking.

Let’s go over some old facts one more time. Clip this out, magnet it up to your fridge, keep it there for Thanksgiving, make Uncle Roy read it. We’ll do this in quasi-catechism form, with three questions.

Question 1. Why did Joe Biden fire Ukrainian prosecutor Viktor Shokin?

Right-wing allegation: Because Shokin was investigating Burisma, on whose board Hunter Biden served, and was fast zeroing in on some epic corruption that had dirtied the young Biden’s hands and probably Biden père’s too.

Real-Earth known facts: Biden was sent to Kyiv to order that Shokin be fired for his failure to launch aggressive corruption investigations—including into Burisma.

Ukraine had, in early 2014, experienced the Maidan Revolution, or the Revolution of Dignity, in which corrupt, Putin-friendly President Viktor Yanukovych was ousted from power. The pro-Western Petro Poroshenko won the subsequent presidential election. He appointed one state prosecutor who failed to pursue corruption cases. That man was fired and replaced by Shokin.

But Shokin too proved lax in pursuing such cases. Ukraine was a pretty corrupt place, and apparently no one would take on the oligarchs. This hardened group included Mykola Zlochevsky, the head of Burisma. According to this report, Ukrainian anti-corruption crusaders were pushing for Shokin to probe Zlochevsky and Burisma; the British government had requested information from Shokin’s office as part of an investigation into alleged money-laundering by Zlochevsky. Shokin, according to anti-corruption activists, ignored the U.K. request and dragged his feet generally.

In other words: Burisma (and Zlochevsky) was one of several fronts on which Shokin was failing to act. Daria Kaleniuk, executive director of the Kyiv-based Anti-Corruption Action Center, was quoted as saying: “Ironically, Joe Biden asked Shokin to leave because the prosecutor failed [to pursue] the Burisma investigation, not because Shokin was tough and active with this case.”

Furthermore, it was this failure to act, not solely on Burisma but more broadly, that convinced the Obama administration, the EU, the World Bank, and the International Monetary Fund that Shokin had to go. Biden demanded Shokin’s firing on a trip to Kyiv in December 2015. Two months later, IMF head Christine Lagarde threatened to withhold $40 billion in aid unless Ukraine took strong steps to fight corruption. Shokin was finally fired the next month.

There’s a lot more, but you get the picture. There is no evidence to suggest that Biden wanted Shokin fired because he was being too zealous in fighting corruption. And there is a mountain of evidence to suggest that pretty much the entire Western world wanted Shokin fired because he was failing to fight corruption. The truth—at least as far as we know it today—is the precise opposite of what Trumpworld contends.

Question 2. Aren’t there still a lot of unanswered questions about Biden’s role?

Right-wing allegation: Oh yes, and the American people obviously need nothing less than a thorough investigation!

Real-Earth known facts: It has been investigated. By Republicans. Twice! They turned up nothing.

One investigation was undertaken by Scott Brady, the U.S. attorney for western Pennsylvania, appointed by Trump. When the FBI first got wind of the bribery allegations in 2020, Attorney General Bill Barr appointed Brady to poke around. He interviewed Rudy Giuliani, who was busy spreading these rumors, for several hours once. But whatever Brady did or didn’t do did not end up amounting to much. He closed up his investigation without so much as issuing a report.

The other investigation was conducted by Senate Republicans. It was a joint production of the Senate Finance and Homeland Security committees, chaired, respectively, by Grassley and Ron Johnson. The report found nothing. Oh, they padded it out to 87 pages with a lot of tissuey suggestions about possible appearances of conflict and such, but they found no evidence of anything involving Joe Biden. The committees interviewed 10 witnesses, Democrats noted in a counter-report, and none of them said they knew of any instance in which Joe Biden sought to alter administration policy toward Ukraine because of his son.

Oh, yeah—this report was released in September 2020. Right before the election. If they’d found something politically useful, don’t you think we’d have heard about it nonstop in the closing weeks of the election? But we didn’t, because they didn’t. Johnson conceded before the report’s release that it would have no “massive smoking guns” and commented on the “misperception on the part of the public that there would be.” Gee, who would have been responsible for that? Ron Johnson? (Among many others.)

Question 3. I seem to recall that Trump got impeached over Ukraine. Does all this have anything to do with that?

Right-wing allegation: Only that that first impeachment was the beginning of the witch hunt of poor President Trump, designed simultaneously to hide the true corruption, which was Biden’s.

Real-Earth known facts: Yes! It’s directly tied, because Trump wanted Ukraine to drum up some phony allegations about Biden. So it is Trump and only Trump who tried to corruptly influence Ukraine.

Before America got to know Volodymyr Zelenskiy as the courageous Putin resister, they knew him as the guy on the other end of the phone line in July 2019, whom Trump tried to blackmail to find dirt on Biden. He was indirect about it; he spoke the way a mob boss speaks, as he always does, you know, Nice little country ya got dere, be a shame if anything should happen to it. But his message was crystal clear. Like: “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution, and a lot of people want to find out about that, so whatever you can do with the attorney general would be great.” And: “The United States has been very, very good to Ukraine. I wouldn’t say that it’s reciprocal necessarily because things are happening that are not good but the United States has been very, very good to Ukraine.” (These are exact quotes.)

No known set of actual facts suggests that Joe Biden shut down an investigation in Ukraine. The man who headed Ukraine’s top anti-corruption unit at the time told Reuters in September 2019 that there was indeed an investigation of Burisma going on at the time, but it was “up in the air, so to speak.” And he also said that the period being investigated was 2010 to 2012—years before Hunter Biden even joined the board.

Is it possible Joe Biden took a bribe? Look, the pope smoking dope on the Cape of Good Hope is possible. But it, like Biden being corrupt, doesn’t match any set of known facts, after a Ukrainian investigation, a Senate investigation, and an investigation by a U.S. attorney all turned up bupkes. We do know, however, that another U.S. president did behave corruptly toward Ukraine. It’s the guy who’s sitting down in Florida awaiting his third and fourth indictments.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

So Donald Trump has been indicted on seven counts related to the classified documents he took to Mar-a-Lago, the charges reportedly including violation of the Espionage Act, making false statements, and obstruction of justice. Here are some other things we know, and some things we don’t know.

We know: This is historic. A never-before development for a 247-year-old democracy that has historically shown extraordinary deference to its presidents and ex-presidents. Trump and his defenders will twist this to suggest that he’s being attacked by a weaponized “deep state.” On planet Earth, it means that Trump singularly may have (even he is still presumed innocent!) violated laws and norms that everyone else followed.

We know: There is a real and undisputed record of Trump ignoring polite requests from the FBI to cooperate in their investigation into the matter, and later stonewalling the bureau when it decided it had to stop being polite.

We know: Despite Trump’s ridiculous protestations, his flagrant disregard of classification laws makes this case very different from those of Mike Pence and Barack Obama and, most saliently, Joe Biden. Biden’s situation has not yet been resolved, and that may take some time. But it seems likely that some aides made some mistakes, and that’s what the probe will find, as it just did with Pence (I’m obviously no fan of Pence, but he, like Biden, is not a blatant lawbreaker). It will be important to keep pounding on this distinction, because Trump will hammer on it.

We don’t know: precisely what these seven counts entail and spell out. Obstruction of justice is reportedly present in those seven counts. And that’s the big deal—if Trump had said okay, you’re right, sorry, and returned the documents? Probably no case.

We don’t know: what’s in the documents Trump kept.

We don’t know: how seriously he may have compromised U.S. intelligence gathering or sources.

We don’t know: when this may go to trial. In federal court in Washington, it takes a year. In south Florida, it could all happen much faster, on the “rocket docket.” The Manhattan judge on Trump’s first indictment, brought by Manhattan DA Alvin Bragg, has already set a March 24 trial date—the thick of the later presidential primaries. What if this goes to trial around the same time? And remember, there is probably at least one more indictment coming, down in Georgia.

The key thing here is what’s in the documents. That’s where public opinion will say: Yes, this was a justified and necessary action by the federal government, or no, this is political. We know that about 35 percent of the country will view this as a witch hunt. I think a bit more, say 45 percent, will view it as justified. But that leaves 20 percent—a 20 percent that includes a lot of Trump voters. U.S. special counsel Jack Smith, who seems like one bad dude, knows what’s in the documents. I doubt he’d uncork an indictment if the documents featured talking points of condolence for the ambassador of Mongolia upon the death of the head of state.

In other words: What Trump did here is alarming, in terms of law and process. It’s also, maybe, an open-and-shut case. Former Attorney General Eric Holder told MSNBC’s Chris Hayes on Thursday night: “This is not a particularly difficult case.” That may be, legally. But politically, the American people will want to see that what Trump did was genuinely reckless. My bet is that Smith has that political horse sense. We’ll soon see.

But the bottom line here, and the One Big Thing that we know above all else? Donald Trump has had this coming. For years. This feels like justice coming.

It’s not just that he mocked and ignored the law for decades when he was in the scuzzy world of New York real estate, although it is that, to some extent. But it’s much more: He became, by means fair or foul, the president of the United States. Presidents have obligations to the people—all the people—that no one else in our system has. They have to, or certainly should, embody the best of our traditions. They should, like Biden does, genuinely and from the heart, venerate the Americans who gave their lives for this country. I have very mixed feelings about a lot of our wars. But I want the president, who by the bye is also the commander in chief, to humble himself before the memory of people who died in them. I do not want him to call them suckers and losers, as Trump did.

And they have to revere the law. This has been a given, throughout our history—until Trump. Well, Dick Nixon, but once he was caught, he, too, admitted he was wrong and surrendered power. Only Trump knows and respects no law. He got away with that when he was in the inherently sleazy business of slapping his name on casinos. But the presidency of the United States is not an inherently sleazy business. Or at least it’s not supposed to be. Trump made it that. If there is any justice left in this country, he will die in a jumpsuit that matches his cratered skin.

This article, which has been updated, first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.

Donald Trump and Ron DeSantis are laying into each other. Trump makes his juvenile cracks about how to pronounce DeSantis’s name. Dee/DuhSantis counters by calling Trump’s jibes, well, “juvenile,” and had a bus paid for by a super PAC supporting him follow Trump across Iowa, mocking him.

Politico calls this “savagery,” or at least a “path of savagery.” That seems a little overstated to me, at least for now, but this is something new, and it’s worth thinking about: The 2024 GOP presidential primary could get mean and brittle in a way no Republican primary has been since … well, let’s think:

Since 2020? No, that was just Trump.

Since 2016? That race had its moments of bitterness, but the governing dynamic, as you may recall, was that most of the other Republicans refrained from attacking Trump on the assumption that he wouldn’t last and they would gather up his supporters. Marco Rubio notably broke from this mold and lobbed some grenades Trump’s way, but he ended up sounding more like Don Rickles than a candidate for president.

Since 2012? There were some tense moments between Mitt Romney and Rick Santorum. But the bottom line was that you never thought Romney was really going to lose.

And this is why 2024, just maybe, could be different: There just might be actual drama about the outcome.

I know it doesn’t seem that way now. Trump is way ahead. And the more people who join the race—there are seven well-known candidates now (and two no-names), and Chris Christie next week is going to make it eight—the more it favors Trump, because he is presumed to have his 30 percent, which leaves seven people splitting the other 70 percent. Even I can do that math.

But just this once let’s play around with this hypothetical. Trump is indicted by Jack Smith. That’ll be indictment number two. Then he is indicted by Fani Willis in Georgia. That’s number three. The conventional wisdom is that this will merely galvanize his supporters, and that’s surely true of many or probably most of them. But all of them?

Elections are about percentages. Sweeping statements of conventional wisdom tend to ignore this. Some percentage of Trump’s base will, in fascist fashion, adhere to him all the more loyally, and they’ll buy all the deep-state garbage he dumps into the civic bloodstream. Some percentage will basically stay with him but start to entertain some practical doubts about whether he’s the best person to send into battle. And finally, he’ll lose some percentage.

It’s anybody’s guess as to what that number is. But let’s say it’s a quarter of his base. If we’re calling his base 30 percent, that’s 7.5 percent of the electorate. That takes him down closer to 20 percent. That’s a different race.

Now throw on top of the indictments the reality that at least two candidates, DeSantis and Christie, will be attacking Trump directly. People tend to roll their eyes about Christie’s candidacy, and eye-rolling is the right response if the question is “Can he win?” But that’s the wrong question. Nobody thinks Christie can win. I very much doubt even Christie thinks he can win. No—he’s getting in to stop Trump. There’s no other rationale.

Christie’s track record with respect to Trump is a long way from consistent and admirable, and Fox will have no trouble finding clips of Christie sucking up to Trump. But lately, he’s been a consistent critic. He called Trump “Putin’s puppet.” As USA Today reported this week, Christie is basically going to camp out in New Hampshire, ignoring Iowa and other early states. The idea is obviously to try to convince New Hampshire’s sometimes prickly and unpredictable electorate to turn on Trump and stop him.

If that works, and Trump loses New Hampshire, then we have a race. The outcome will actually be in doubt, at least for a while. Christie and DeSantis, and by that time perhaps others, will lay into Trump. This will be new. What will this Trump—thrice indicted, under constant barrage of attack—be like on the campaign trail?

There really aren’t any serious fissures in the Republican Party today. It’s an ethnonationalist, anti-democratic, neofascist, anti-freedom party that really only cares about creating a moral panic over certain Americans it finds threatening to its brittle and reactionary righteousness. There’s no serious disagreement about any of that. There are merely people who are gung ho about it, and people who would prefer for various reasons to soft-pedal it. But they’re all on board with the basic program. If they weren’t, they’d nominate a candidate who opposed all that, but there is no chance of that.

The only fissure is a tactical one, over Trump. Is he the best field marshal to advance the moral panic? That’s what the 2024 primary will be about. The odds still favor it not being much of a fight. But the Trump-DeSantis pre-savagery this week, combined with Christie’s coming entry, means there’s a chance that all this could get desperately ugly next year. Make that nasty. It will already be ugly.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.